FSTs

[jaybb]

Have you all ever had somebody refuse a field sobriety test? Obviously the blood and breath sample falls under implied consent. But from what I understand in California, it is not required for people to blow in the PAS or do the FSTs. How do you all handle a situation like that?

[10-7]

Basically, you "form your opinion" on what you have already seen. If you "make a mistake", you can un-arrest them. As long as you can articulate probable cause, it should be fine.

[RodeoChippie]

Everyone who has every refused to do FSTs for me has gone to jail. More often than not they refuse the chemical test too. This is OK with me because now they can be as drunk as my magic pencil wants them to be:shock:

[Your Mentor]

There is actually a movement among high-profile DUI defense attorneys to advise their clients NOT to perform the tests. They are told to do so in a non-hostile manner. I've actually seen a statement on the back of one of these attorney's business cards which the client is encouraged to provide to the officer to read. The theory is that the officer is robbed of the NHTSA tests as a means of investigation. I've had two people do this to me; though they did provide blood samples. In both cases they didn't perceive the eye exam as being an SFST and so I was able to use that alone. Slam dunks - across the board. All of these DUI defense attorneys universally demand jury trials which goes against their advice regarding refusal to perform tests. They try to pull off courtroom circus acts, confuse the jury, and induce doubt where there really isn't any. Most jurys perceive any refusal, whether to perform tests or submit to Implied Consent, as an admission of guilt. "If you were innocent then why didn't you prove it by performing the tests." They also perceive the circus act as a huge waist of their time away from their jobs, family, etc.

[Mac]

I've had several people refuse to perform FSTs.....and no, they're not required to do them, nor are they required to submit to the PAS device. However, 99 times out of 100, that means the officer has to form his opinion based on the facts he has at hand - which usually means they go to jail and their car gets towed.

More and more Areas are doing forced blood tests on misdemeanor DUI - which means that you're going to give blood whether you like it or not. So you can refuse the FSTs and the PAS, but you WILL submit to a blood test - the easy way or the hard way. Nice thing is, if you refuse a chemical test and then it's forcibly withdrawn, you're STILL considered a refusal by the Implied Consent law - so the DMV penalties still apply.

[SuperTrooper]

Doesn't a person lose their license for a year if they refuse a chemical or blood test..... or something like that? A couple of officers I was with told a deuce the above to gain his compliance.

[Darth Choke]

Refusal = 1 YEAR Suspension

Under 21 yrs = 1 YEAR Suspension no mater how much alcohol (arrest or not - Zero Tolerance)

[Darth Choke]

For how long will my driving privilege be suspended if I took the chemical test?

If you are 21 years of age or older, took a blood or breath test, or (if applicable) a urine test, and the results showed 0.08% BAC or more:

A first offense will result in a 4-month suspension.
A second or subsequent offense within 7 years will result in a 1-year suspension.
If you are under 21 year of age, took a preliminary alcohol screening (PAS) test or other chemical test and results showed 0.01% BAC or more, your driving privilege will be suspended for 1 year.

If you were 21 years of older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

A first offense will result in a 1-year suspension.
A second offense within 7 years will result in a 2-year revocation.
A third or subsequent offense within 7 years will result in a 3-year revocation.
If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

A first offense will result in a 1-year suspension.
A second offense within 7 years will result in a 2-year revocation.
A third or subsequent offense within 7 years will result in a 3-year revocation.

http://www.dmv.ca.gov/dl/driversafety/dsalcohol.htm

[jeremyscreek]

To go along with Darth Choke's post, my experience has shown that DMV will give you a restricted license many times if it is your first DUI arrest and you cooperate and don't have a bad driving record. DMV doesn't always do it, but many times they will allow the person to drive to and from and during the course of employment for the 4 month suspension. In the end, it only pays to cooperate.

[Your Mentor]

Lets not confuse refusing Implied Consent with this thread's question; what happens if a person refuses to perform FST's. They are entirely two different animals. Absolutely NOTHING will happen if a person refuses to perfrom field sobriety tests (administrative action anyway).

[jaybb]

Have you ever had the experience of somebody refusing FSTs but you don't have enough PC to justify arrest?

[Mac]

Have you ever had the experience of somebody refusing FSTs but you don't have enough PC to justify arrest?
No.

[Your Mentor]

Mac's experience is common to all of us. Refusing to perform FST's is a clear sign of poor judgement. Add that to all of the other things we look for and it nearly always points to impairment. The first thing to be impaired by alcohol is the mental component. Physical impairment doesn't start to become apparent until the person's BAC reaches .05% or higher. But the human brain has the highest water content of all organs so that's where the alcohol heads the minute it enters the body (alcohol is a hydrophylic molecule: water loving). As such, your reasoning and hibitions are first to go when you start drinking.

[SB 405]

And it's your altered reasoning that gives you that "I'm fine" attitude as you pull the keys out of your pocket walking out of the bar.

[redhead]

Don't know if this is a trade secret or not, so edit as needed:

I was told by an officer the PAS is the last line. Before they even enter the stage of PAS, they know the offender is getting hooked, and the PAS is just the "easy" way to tell it to the courts. In other words, the other FST's already would prove impairment, and the PAS just puts the dot on the i.

[Mac]

The PAS is only another FST. In theory, if you've already made the decision to arrest before administering the PAS, then it's an invalid FST because you're not investigating anymore, you're gathering evidence.

[Your Mentor]

I don't know if you would consider the PAS test as the last line. By law it is considered only another field test. The PAS is not mandatory by policy or case law. I've hooked people without bothering to use it simply because I'd already formed my opinion regarding their impairment. I think we've all had individuals who were so obviously intoxicated we don't even bother to run them through SFSTs. If the average citizen can see a person is falling down drunk, then believe me, a trained officer can definitely see it. Having the PAS available is great and should be used to assist the officer in forming his or her opinion AND as a form of evidence. However, like all things DUI, the PAS has caused a ton of case law, most of which the average field officer is unaware of. We started using the PAS in 1990. We all put it in our reports but couldn't mention it in court. Now it's considered another SFST.

[Officer_Grady]

hadn't arrested a drunk in over five years till a week ago or two. No PAS, nystagmus put him at least .15, FSTs said he was drunk, breath tests .15 and .17. Less documentation, chemical test is key.

[jaybb]

Have you ever come across somebody who had like a .09 or .1 and you felt they were not "impaired"?

[Your Mentor]

Never. But it wouldn't matter anyway. The (b) subsection makes it illegal to drive at that level regardless of impairment. However, impairment begins to become apparent, to some degree, at about .05%. Because the alcohol molecule is hydrophilic, it goes to the one organ with the highest water content like a bullet; the human brain. Tolerance with alcohol doesn't reduce impairment as with narcotics or anti-anxiety meds. Tolerance with alcohol equates to a much faster burn off time. With really heavy drinkers, people whose BAC is high for prolonged periods, given time, their bodies begin using an additional metobolic system. It is this additional system which is linked to DTs when they stop drinking. However, to answer your question more fully, they may not appear as impaired to an untrained eye but this is because of learned responses in their constantly intoxicated state.

[Officer_Grady]

jaybb, why would they not be impaired, you would have stopped or made contact with the person under just cause. You talk to them for a reason, you arrest them because they are impaired to operate a motor vehicle safely.

[dw]

jaybb, why would they not be impaired, you would have stopped or made contact with the person under just cause. You talk to them for a reason, you arrest them because they are impaired to operate a motor vehicle safely.

Huh? :confused:

[LAWNMUSIC]

I find it is fairly rare that someone will refuse the FSTs and/or Chemical Test (Non-consensual blood draw is a great tool if your county has it). At certain levels of impairment, many people THINK they are okay, think they are going to perform well, and don't mind doing the tests. Also, I think a large percentage of people arrested for DUI are normally law abiding citizens who want to comply with law enforcement.

If someone says they aren't going to do FSTs, unless they are totally unruly, I usually offer a test, they state that they aren't going to do it, I offer the next test, they say they aren't going to do it, etc. This is valuable because, at the very least, it shows I gave the suspect every opportunity to demonstrate that they were not too impaired to drive.

[HwyChaser]

It doesn?t hurt my feelings one bit when someone refuses FST or the PAS. If I didn?t feel they were impaired, I wouldn?t even ask them to perform them. I love when the suspect refuses the FSTs and the PAS. They look at me like ?Ha, what are you going to do now?? Then I place them under arrest and they argue with me all the way to the jail about how I could possibly arrest them without the FSTs. Half the time I hit the road, I don?t even take my PAS.

[CHPGuy]

I have a question, I was on a ride-along and the Officer I was with was assisting another Officer with a deuce stop. The primary officer didn't want to initiate the stop until he had back up. After the stop and contact was made the Officer deamed the driver and passenger to be under the influence. Now my question is...... Why did they arrest the passenger. I was assisting with the paper work the whole time and they didn't find and drugs or weapons just a bottle of SoCo, and an open 12 pack. Would they just arrest him for drunk in public???

[WinnieI05]

Most likely they arrested him for 647(f)PC which is public intoxication. If a person is deemed in the officer's opinion that the person is so intoxicated that they cannot care for themselves and could be a danger to others, the officer can place that person under arrest. Case in point, I made a stop on two people and arrested the driver for DUI. After the arrest, when I approached to determine if the passenger could care for himself, he had passed out. Could I leave him passed out on the side of the freeway? No, he was finally roused after about 3 mins of trying and arrested for public intoxication.

Hope that answers your question.

WinnieI05

[CHPGuy]

Yes it does, That is what i figured, they were both so drunk it wouldnt have been a good idea to let the passenger out into the public.

[015916]

I don't know if you would consider the PAS test as the last line. By law it is considered only another field test. The PAS is not mandatory by policy or case law. I've hooked people without bothering to use it simply because I'd already formed my opinion regarding their impairment. I think we've all had individuals who were so obviously intoxicated we don't even bother to run them through SFSTs. If the average citizen can see a person is falling down drunk, then believe me, a trained officer can definitely see it. Having the PAS available is great and should be used to assist the officer in forming his or her opinion AND as a form of evidence. However, like all things DUI, the PAS has caused a ton of case law, most of which the average field officer is unaware of. We started using the PAS in 1990. We all put it in our reports but couldn't mention it in court. Now it's considered another SFST.

Agreed, the PAS truly assists with the totality of the evidence. I know of many officers who don't use the PAS because they've already formed the opinion the subject was impaired. Regardless of my opinion, I ALWAYS use the PAS. Why not use the tools provided? This is yet MORE evidence to show in court that the subject was over the legal limit at the time of driving. FST's (SFST's included) are subjective in nature and tend to be argued extensively in court by the defense. As long as there is compliance with Title 17 with the PAS, the evidential weight is as damning as the chemical test results you have. In addition to that, it also makes quick work of "Rising BA" games the defense tends to play. Being able to show specific BAC's on scene prior to arrest, and yet another roughly 30 minutes later is just that much more for the DA to use to their benefit. I say use a PAS on .08's and on .25's. The more evidence we can provide, the better.

[Your Mentor]

I agree that you should document as much evidence of impairment as possible. But I disagree with the idea that SFST's are subjective at all. If one administers them and observes the validated clues as defined by NHTSA, they're completely objective. This has been a common target among payed defense attorneys because many field officers aren't following the NHTSA standards. It takes a short line of questioning on cross to determine an officer's knowledge of the SFST's. Case law has determined that if the tests aren't administered according to the standard, it goes against the weight of the case and they are no longer considered scientifically validated tests. In which case, they are not objective.

Don't disregard your own experience and training though. If you feel the need to use the PAS on a .25, then by all means, have at it. But it sounds pretty damning in front of a jury when you say, "He was so obviously impaired, I didn't need to administer the PAS." Remember, also, we are heard by the same judges over and over. They remember our testimony from one case to the next.